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Us 5, Renne 2, The City 1, Brown 1, Mr. St. Croix 1, Bible 1, Hayon 1, Readjudication 1, Mr. Chatfield 1, Parenthesis 1, Patrick 1, Mr. Wolf 1, Remnn 1, Bruce Wolf 1,
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  SFGTV    [untitled]  

    October 3, 2012
    2:00 - 2:30am PDT  

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it's coming forward that the cause occurred. and this person must show why it didn't or show mitigating factors why it's public record or what have you. that's why they are in there. you can probably end the sentence with, consider all the relative circumstances surrounding the case, period. and consider what is pertinent to at that time as mitigating factors and not have any lists. this list is not meant to be exhaustive. but it might be simpler for you to allow yourself to be able to consider everything. >> what if we remove a-d? >> what? >> a-d. >> a period where there is a comma now. i would be fine with that. >> i had the question whether
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those are intended to be affirmative defenses. in other words one could say, when i get to the "d" for example, whether the respondent spoke with council and relied on that of the employee. that probably is a grounds for which it becomes difficult to say that there has been a violation. we might decide that they should, that the advice they got was wrong. and that we should issue an order saying that the documents shall be produced. but on the other hand, we might say the employee acted in good faith. he went to the city attorney, and the city attorney said, you don't need to produce them. >> i think by -- we are not trying to eliminate these. these would all be under the heading of what is relevant. they would be part of the relevant circumstances surrounding the case.
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the question is whether to enumerate some of them here that we've anticipated as possible defenses. we don't eliminate the explanation or defense if we don't list it here. the question is if it's useful to say that is one of the circumstances that would be appropriate to raise. >> and i think you are both right. actually. i don't think it limits the affirmative defense. i think the problem is some of these are not affirmative. the only factor is a penalty.
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commissioner hayon. >> they are circumstances but not defenses. >> i don't feel strongly if we want to end it surrounding the case and limiting everything beyond. but i have a different issue. >> okay. >> there seems to be a gap. if we decide to refer the show-cause hearing to one commissioner. we don't say what he or she is supposed to do. if he or she reaches a conclusion that supports the finding of a violation. i think what is contemplated that, that gets reported to the full commission. and the commission debates whether three of the commissioners want to agree with the hearing. but we don't have a provision
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for what happens with the hearing officer's determination. >> unless we change the procedure about three commissioners. and if a person gets that responsibility, they hold the hearing and make the determination alone. must we have it come back to the commission? >> but that's what i am saying, if you have just, it contemplates that it could be a hearing officer and not even a commissioner. >> right. >> and what does he or she, or what are they supposed to do once they hold the hearing and reach this determination. >> you are right. >> makes their finding. it has to get reported to the full commission, doesn't it? for action? >> i assume that's correct, but i welcome input from staff and city attorney. >> to be honest, when this was drafted i don't think that staff
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was contemplating that there would be one person on this own dealing with this. the idea was that one person hold the hearing and ask thei questions, and you don't do it as a whole but you deliberate as a body. the hearing officer is the one procedurally running the matter, rather the decision as a body. that was staff's contemplation. not that we would have a separate matter with only one commissioner present. and that one commissioner making a decision. always that a full body would deliberate. and the hearing officer would procedurally run the hearing. if that's not clear, then we certainly should make it clearer. >> yeah, i think we should make that clearer. >> because i thought one under the idea, one commissioner or one hearing officer is speed.
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so say once it gets assigned, hopefully can get sent maybe within a week or so. so at the next full commission meeting a report can be made back to the commission. saying we have had the hearing. here's what we think it should be affirmed or whatever. and leave the deliberation to the penalty side of it to the full commission. >> that's interesting. i mean in some ways you could have a set -- if we wanted to full you utilize that procedure. because it would provide potentially more speed. one idea would be to have a regular date. and if there are -- if we wanted to delegate to an officer and if
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they need to appear. and if they hold the hearing and make a recommendation and then the matter is heard by the full commission. >> and not the matter but the recommendation from that one commissioner comes back with having held the hearing which would be public. would say i agree with the task force and my recommended penalty for these reasons. and have it on our docket but not have held the hearing. >> right. >> maybe we should deliberate the language about assigning a member now and bring it back for a proposal of a process. >> okay. >> i want to clarify. you want me or staff to delete
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the reference to assigning a hearing officer and contemplate later? >> i think that's -- did you -- i think that's fine. i think mr. shun, you are shaking your head. >> no, i wasn't shaking my head at all, i a -- apologize. >> okay. i think we should think more thoroughly what one people procedure would look like to have a process of delegating to one individual. >> i think we could have a person assist the commission and manage it in our presence. i don't know that, that would require a separate. we are not then giving over any part of it to someone else. but the idea of bike racking this and thinking through the
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steps. >> with the idea with a noncommissioner appointed? >> let's leave it open for you. there was never any contemplation that you wouldn't be there. >> right. >> so although your suggestion does have some, it's a good idea to pursue. but it would be complicated in the moment to sort that out. if that's something you want to do, we should look at it. we didn't intend in any way for there to be a hearing without the full commission to be there. it was just one person to try to expedite the process in itself. >> right. we will hear what the public has to say about that. 2-1-f. commissioner renne.
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>> yes, i raised a question about 1-d. that says the respondent department commission to pay a monetary penalty up to the general fund of 5,0$5,000. the first question, if the department is paying, and it goes to the general fund. what are we doing, just moving dollars from one agency to another? and isn't what the -- as i understand what the task forces wants and what we want, that we find that the documents should be approved. is an order that the documents be produced. if they fail to comply with it, i guess they have to go to a court to get some citation. i mean that's the most we can do. but to order them to produce the records. and if we are going to impose, and we get to willful, it may be
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different. if we find that a fine is appropriate and we have the power, i don't know why the fine shouldn't be paid by the individual who failed to comply? >> i too have questions about the monetary penalty. in part because i am not sure we can do it in regulations. >> two points, and i apologize. i think some issues have come up in prior meetings on the subject. in terms of potentially penalizing a city employee. that was an early regulation of the strat regulations. and the issue in that respect, if that were a possibility. we would certain meet and confer obligations with the effective
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employee's unions. and the legislation has done meet and confer before. and it's not necessarily a barrier we couldn't overcome. but i wanted to mention that procedurally. in terms of if we were to stick with a current proposal of moving money from the department to the general fund. to implement that small piece of this proposal as an ordinance than a regulation. when we talk about moving money from one department to another, that's done generally through the budget process, that is legislative. and we perhaps need the authorization of an ordinance than regulation. >> when you say perhaps, what do you mean? >> i have had some discussions with the controller's office about how to make this happen. that's the recommendation. if we move money from one department to another it should
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be through an ordinance. >> because the regulations are ineffective? >> right. to move money from one department to another fund. apart from the ordinance, and generally how you move money around it's generally done through a legislative process and not through regulation. >> commissioner studley. >> i think on a cost benefit basis, it's a lot of effort and energy by us. by these folks. i don't think that $5,000 is going to change behavior. i think if there are places where it's appropriate to have individual penalties that suit the circumstances. i agree with commissioner renne, that may be a tool we may want to have available. individually for severe cases. if we are going to go to the
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trouble, i would rather explore the idea of whether we could put a hold on a more substantial amount. that would pause funding to the agency, which would be more attention getting than $5,000. and that may be far too complicated to do. but it seems to me we would be matching the frustration with the action of something that might get attention in the agency. now if it's not your first 5,000 and multiples of 5,000. then you start to have a problem. and then maybe on people's radar. so. if i expand my mind to picture rec rec rec recidism then maybe so. >> i think that a small amount
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would have an effect. especially with tight budgets, every amount will count. the question of whether we can actually make it happen is another issue. whether it's worth it. i think the intention here was to give us some teeth. because of the manner there is concern if departments didn't want to comply. perhaps there was not much we could do about it. any other -- >> the website posting does invite other communication methods. not just passive. but something more active. that might also have some teeth or effect on people.
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a communication with who that individual may be. whether they may take some action against them. >> call it optimistic. >> huh? >> call it optimistic. >> not naive, optimistic. >> i suggest that, that is probably too problematic to maintain and just remove for now. >> mr. chatfield, any different view? >> no, the city attorney made it che clear the best way to approach is with a provision. and it's better to pursue in a way to actually deal with it. >> yeah, what happens in a situation where we have the
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show-cause hearing. the defense is advice of counsel. looking at it, we think that the advice of counsel defense lacks merit. what happens then? >> i think that would be some factual matter for you to determine. >> but if we were to order the document produced and found the defense lacking. they don't turn it over because they did get advice of counsel saying they shouldn't. how do we resolve that? >> well, the ordinance itself, and apart from the remedies we have done here. the ordinance allows that person to go to court to get the city to produce the document. we could not initiate a court action for them. that would have to be their next step. maybe that's the advice you could give to them as a commission. apart from the penalty we have done here, i don't know anything
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from that forward. you have issued an order saying produce it. and they don't. you know. >> okay. any other views. from the commissioners? on this particular penalty? 2.1-g. any comments? okay. let's take public comment on decision point 2. >> bruce wolf. i just want to, start by saying that most of us here are here to help. and make this work.
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a lot of us on the task force want to offer suggestions as to how we see things to be either appropriate or better or whatever. so at first i think it's important to separate 6730-c from 6734. the willful failure meaning misconduct. that's completely within your jurisdiction. you deal with it in the way you deal with official misconduct cases. that's something that the task force has no bearing over. but under 6730-c, it's specific for remedies and enforcement only. and not rejudeicatiadjudicate ar
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the task force did what they did properly. and that's got to be assumed. it has its own legal counsel and it has two attorneys that sit on the body. and also has legal counsel from the attorney's office. you have to consider that what is deemed as a determination is true. and it's asking for you to provide the enforcement for that. that's a two-fold aspect. the first as commissioner remnn and studley pointed out, to get them to do what they were supposed to do. they had the opportunity to tell the task force why it's not a public document. and under 6730-c. it's not just public documents. it includes cpra and the brown
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act. state laws and not just sunshine. they have to show the cause there. they would have done that. so the hearing process already done. the evidence is there. the show-cause is this. it's already in the minutes and already in the orders of determination. no need to repeat it. i think what is important here is [buzzer] after all of that is said and done, your deliberations is what is the enforcement. first get them to do what they were supposed to do. and if they don't do it, that could be considered willful failure and you can move forward. okay, am i making sense? >> you are. except when we met, this was the compromise situation we came to. we were not willing just to enforce. but the idea that we give the task force the presumption, have a show-cause hearing at which the respondent would be required and have the burden of proof to show why a violation did not
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occur. and then we would make a decision. so you know, i understand your point. and you made that argument when we met. and i respect it. but the decision that we as the commission made, we were going to have this kind of process. that was sort of a hybrid. not a re-doing or investigation but also enforcing. >> but it sounds like an appeal process. if they didn't get it at the first trial court, and this is appeals. and that is inappropriate. the sunshine ordinance does not provide the ethics commission with that jurisdiction under 3630-c. it can take to anyone, it can take it to the city attorney that doesn't have a process like this. it can take it to any appropriate body. and chooses that you [buzzer]
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perform those functions in other areas. you have schedules of enforcement and penalties. and under certain circumstances it's assumed that all documents are public. it's the burden of the respo respondent to show it's not. >> he does have the burden, appreciate your comments. >> patrick, i have a number of problems with this entire series of decision points. one in two. and 1-a-2. on page 7 of the version of this sitting on the table. again it says when you had this conversation about rewriting 2-a-1, 2, and a and b and c, about willful violations and
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nonwillful violations. again it doesn't mention city manage managers. we are talking about a and of 6734. and the city manager and since that phrase exists in the sunshine ordinance, should remain in this section. moving to 2-2-e, i notice again there is a numbering problem. section 1-a, dealt with going to arabic numbers, following the "a." this section picks up with lower case numbers in parenthesis. and it's just confusing that you go from 1-a-1 to 1-2-a to roman numeral. the numbering in this thing needs serious reworking.
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in addition on section 2-2 e. on page 9 of version of this on the table here. subparagraph c and d, shows that you are attempting to while deliberating and finding that you are offering in your regulations mitigating and expulcaatory in your process. i don't think you should provide for any exceptions that they relied on good faith for an exception provided by the sunshine ordinance. because of course those exceptions have to come from sepra and the sunshine ordinance. in "d," they should not be let off the hook because they relied
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on the advice of another city officer or city attorney. if another city officer and city attorney are wrong, they should all be found to violate the ordinance. just because they come in and here claim they were relying on someone else's advice, doesn't let them off the hook of any exp explatory basis. in f [buzzer] c and d, whether an isolated incident or a pattern and the commission found that they had violated the ordinance. did not excuse their behavior on a new case. that should be taken out. i guess that does it on this section.
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>> am i correct there is no copy of the sunshine ordinance in the room? no. thank you, mr. st. croix. i think that's quite stunning and shocking. we have a grand city hall. we have a multi-billion budget, we're talking about the bible we are referring to and don't have a copy for the public. that's pretty stunning. >> i will off you one. you want one?
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>> thank you, i would like one for the public to peruse. i would like one for the public and how about a sunshine ordinance, since that seems to be what we are talking about. i have a lot to say, mr. wolf is right, readjudication is the wrong approach. another point of information if i may suggest. for those members of the public who have bladders, please have a mercy break for us soon. with regard to the -- you know, i was thinking of a wonderful old slogan, for a terrible old bread. for those old enough to remember, wonder helps build strong bodies 12 -- >> ways. >> thank you. and this is chalklo

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